pacta sunt servanda

pacta sunt servanda is a latin phrase for "agreements must be kept"!Is a basic principle of international law and refers to private contracts! PACTA SUNT SERVANDA is based on good faith and is the basic principle of correct behaviour in commercial praxis!

Sunday, 14 November 2010

Lord Wright in Smyth [1] described CIF as a contract that is widely and frequently used than any other used for the purposes of sea borne commerce.[2] The initials CIF stand for: cost (the sale of contract), insurance (the contract of insurance) and freight (the contract of carriage). CIF is a defined Incoterm under the Incoterms 2000[3]. The classical judicial definition of CIF was given in Taylor Bros[4] by Lord Wright.

It could be said that CIF serves better the interests of the seller as a shipper. The seller has the benefit of charging a higher price, taking into account extra services. The seller has also, the advantage of receiving the transacting money before the goods actually reach the buyer. Furthermore, the seller has the benefit to recover the value of goods in the event of damage or loss before payment[5].

The buyer has the benefit of not having to undertake the task of insurance or shipping space and has also the advantage of knowing the exact price he must pay[6]. More importantly, the buyer has the advantage to sue the carrier, under the Carriage of Goods by Sea Act 1992.Another benefit of being the buyer is that he has two substantial rights of rejection; the right to reject the documents and the right to reject the goods.

One of the main disadvantages is that the buyer cannot reject the goods or the documents if they are correct and he is obliged to accept and pay them. The separation of risk and the passing of property highlight a problematic nature, as the buyer may not be able to claim a right of possession of goods or bring an action in tort for damages done to the goods prior to his obtaining property.

Concluding, it could be said that CIF is attractive and advantageous to both seller and buyer, but better serve the interests of the seller than those of the buyer.

Sunday, 7 November 2010

The International Labour Organisation (ILO) provides the main characteristic that defines child labour that is the severity of working conditions. Putting the child in hazardous conditions in regards to ethical, physical and educational development with exploitation being the main element[1].In international law, child labour prohibition falls under the categories of human rights[2] and labour law[3], regulated by treaties and conventions. The United Nations (UN) is the main architect of the existing legal framework.

In international labour law, prohibition of child labour is regulated by the ILO[4]. ILO aims to advance the rights of workers including the prohibition child labour. A governing body similar to the committee for the Convention on the Rights of the Child exists, which is examining the implementation of the conventions in the domestic legal systems of the ratifying member states[5]. Two conventions can be said to hold the basic authority on the prohibition which is Convention 138[6] and Convention 182[7].

However, there have been numerous criticisms sighting both shortcomings of the system and fundamental flaws. A common element of criticism for both the UN Convention[8] and ILO instruments[9] is that they are of voluntary nature. Critics claim that ILO has many shortcomings in regulating the signatory states and enforcing the instruments. ILO has no real power in the enforcement of the instruments in contrast to other international treaties like the UN Nuclear Non-Proliferation Treaty. Further, opponents assert that the infringement reporting mechanism is unfair. Only member states, employers and employee associations can bring a claim of infringement. While the current system appears to have shortcomings many of those derive from the very nature of international law and its interaction with national sovereignty. The system is partly successful but in the complete eradication of child labour, a long way lies ahead.

[6]Convention concerning Minimum Age for Admission to Employment (adopted 26 July 1973,entered into force 19 July 1976)C138 (International Labour Convention)

http://www.ilo.org/ilolex/cgi-lex/convde.pl?C138

[7]ILO C182 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (adopted 17 July 1999,entered into force 19 November 2000)C182 (International Labour Convention)

[8]UNGA Res 44/25 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25

Thursday, 4 November 2010

As my previous post was for maternity leave, after doing a bit of research on the subject of discrimination of pregnant woman I found on legal news a very interesting case.

A woman named Ms Quigley has been awarded £45,000 from a Northern Ireland employment tribunal for unfair dismissal and sex discrimination, with the compensation for injured feelings being at the higher end of the scale, after her employer Mr McGrory pretended that she was only working part-time in order to avoid paying her statutory maternity pay.

The case was as follow: Ms Quigley worked in a café owned by Mr McGory. She worked 40, 45 hours a week and after she fell pregnant around 30 hours. However, when she ask from him maternity pay he told her that onlu 15 of her weekly hours had been put through the books so she didn’t qualify for those payments. Although, he insisted that Ms Quigley must lie to Social Security staff to cover up his actions. Hopefully, she refused to do this.

Ms Quigely told on the tribunal hearing that she had had to use her own saving while she tried to secure statutory maternity pay; she was also said that due to financial concerns she was unable to enjoy time with her baby. Although, evidence showed that during her work, Quigley had been left feeling shocked, distressed and betrayed by the experience and became ill due to the treatment of her employer. Eventually, the tribunal awarded Ms Quigley £45,000.

I think that there are many other cases like this! Many pregnant women have been discriminated on work and have been treated from their employers in the worst possible way. If you decide to hire a woman you have to think that possibly in the future she will become pregnant and you have to give her rights whatever those rights are (e.g. 12 or 14 or 18 or 20 weeks maternity leave on full pay). But off-course this does not mean that because is a woman and because probably she will become pregnant in future you should not hire her in order to avoid the maternity pay.

Wednesday, 3 November 2010

Under the Pregnant Worker’s Directive 92/85/EC, EU member states are required to ensure that pregnant women who are employed receive a guaranteed income for a 14 week period that is equivalent to the income they would receive if off sick.

The European Parliament has now voted to increase the maternity leave period to 20 weeks. The Federation of Small Business (FSB) after calculations claimed that this could result in an extra £7,140 wage bill for small businesses on an average salary of £25,428. They fear that this change will result in an increase in the cost of paternity and maternity leave and these costs will have to be shared between the employer and the Government however placing a further strain on cash flow. It is also feared that the small business will deter from employing young women. A propose of 18 weeks have been made, but this propose has been turned down. Under this Commission’s alternative plan, mothers would be entitled to 18 weeks maternity leave- not necessarily on full pay and it could be at or above the sick leave rate.

National chairman John Walker told that “the FSB believes that members stated should decide this issue but it needs to be looked at more seriously”. The UK Department for Business told that it was "very disappointed" by the vote and that they know that other member states share their concerns about the real costs of this directive. Danish MEP Britta Thomsen, of the Socialists and Democrats (S&D) claimed that the measure would encourage women to have more children at a time of widespread concern about Europe's ageing population and low birthrates. However, on 20 weeks the vote was 327 MEPs in favor, 320 against. And on full pay, the vote went 354 for, 308 against.

My personal view is that this vote introduces many uncertainties and complexities which are unnecessary. EU countries have well- developed national maternity pay systems. My fear is that employers may discriminate women of child- bearing age and make it more difficult for them to get jobs. However, small business owners would have difficulties in shouldering the costs. The original proposal of the Commission to extend maternity to leave to 18 weeks with individual member states allowed to decide the level of pay was more reasonable and better option.

Nobody knows what corporate governance means. Every book and article on corporate governance gives a different definition of corporate governance. Generally, it concerns the relationship between the directors and shareholders and the question of who should control and own the company. Auditors and accountants use it to denote the control that they exercise through financial reporting and some people use it to identify the controls over company decision making.

Further it concerns issues about the best way to run one company. Is the set of policies, laws, processes and institutions affecting the way a company is administered, controlled and directed. The regulatory body of corporate governance are the Board of Directors, the shareholders, the management, the Chief Executive Officer and the Auditors. Other stakeholders are the employees, creditors, suppliers, regulators and customers.

A separation has been developed between those who manage the company who are the directors and those who own the company who are the shareholders. The shareholder delegates decision rights to the manager to act in a good faith and in the best interest of the company. This happened because the number of shareholders in a company increases and is not possible for all to control and manage the company’s affairs.

Unfortunately, this separation of ownership and control has as a result a loss of effective control by the shareholders over managerial decisions. As a result of this separation between the two parties, a system of corporate governance is implemented to assist the incentive of managers with those of shareholders. The key aims of a good corporate governance is to minimize the principal agent problem and to ensure the accountability, honesty, trust, responsibility, respect, commitment of certain individuals in a corporation.

Corporate governance deals with the ways by which shareholders assure themselves of getting a return on their investment. But how to they make sure that they do not invest their capital in bad projects and even more how to they make sure that the managers do not steal the capital which they have supplied? All parties to corporate governance have an interest in the effective performance of the organization. Management, workers, directors receive reputation, benefits and salaries. Customers receive services and goods. Shareholders receive capital and suppliers receive compensation for their services. Most of the advanced market economies have solved the problem of corporate governance but this does not mean that they have solved the corporate governance problem perfectly nor that the corporate governance mechanisms cannot be improved.

The aim problem is the separation of ownership and control between the shareholders and the managers. Basically, the problem are that the power and control have been derived in the hands of one person, the scandals ,the lack of supersvision and abuses by the directors.[1] Corporate governance structures such as the Combined Code try to prevent such problems.

for further reading:

Ige Omotayo Bolodeoku, "Economictheoriesof the corporation andcorporategovernance: a critique" [2002] Journal of Business Law 411

Punishment and crime do not exist individually in isolation, they coexist but they have to be in balance in the sense of justice. While crime must not evade justice, at the same time the punishment should be proportional to the nature and the social impact of the crime committed. Both, crime and punishment are a manifestation of and an institution that shapes the community.

2. Definition of crime

Crime has always been regarded by the courts as a moral wrong and conduct demanding retribution. Crime is a myth of everyday life and has no ontological reality e.g. credit card fraud, rape, the use or sale of illegal drugs are all defined as crime and the people offended should be punished. Criminology is still producing meta- theory to explain crime and yet its focus is on content rather than on the political, economic and social context of the production of the regimes of truth.[1] However the criminal law uses a number of rules and tests to determine whether or not a crime has been committed e.g. actus and mens rea.

Statistics on crime produce a very monstrous picture of the harm present in society, producing fear of one specific type of harm and maintaining myth of crime.

3. Danny Dorling’s analysis of murder rate in Britain

Dorling says that murder is part of our everyday life and that the murder buys votes through fear and sells the media. The British people see murder as the isolated acts of individuals and they think that if you kill the killer the killing goes away. Dorling made a statistical approach through the recorded murder in Britain. Basically these statistics show who is murdered, when were they murdered, where, with what they were murdered and why.

According to Dorling murder is a social marker and the murder rate tell us further more about society and how it is changing than each individual murder tell us about the individuals involved. He found that poverty is one of the strongest factors influencing an individual’s chance of being murdered and the possibility of this kind of death rises if life in general made more difficult to live people have to be made to feel more worthless.

It is accepted that a huge amount of criminal offences are crimes against property e.g. damage, theft. But a genuine understanding of crime cannot be reduced to showing that poverty drives people towards offending behavior neither can crime prevention policy simply be dismissed as a means by which the state can control the population.

Therefore, all people poor and rich have an interest in a crime free society and the criminal justice system and the police force are natural components of the system. However many people acknowledge that the system is weighted through the powerful. Who of us would deny that rich people who can afford to hire the best lawyers and commit white collar crimes of fraud or illegal share trading are convicted of crime? But what about people who steal to survive- are they really criminals?

4. Punishment and reform

The very basis of the criminal justice system is punishment and reform. The public expect from the criminal justice system on their behalf to punish those who have broken the law. The justice system is based on three principles: rehabilitation, preventing recidivism and deterrence. Many reject the claim that prison seeks to rehabilitate, deter or provide just desert.

Need is the most valid reason for the commission of a crime. When the choice is between death and life the instinct for survival becomes the primary drive in all but the most disciplined of individuals. By punishing the criminal you will not solve the problem. They will go back in to the same situation. People must receive job training and guidance not incarceration and fines.

Former prison governor David Wilson argues that-

"prison is a trick - all those who have disappeared [from mainstream society] will return. And when they do, none of their underlying problems will have got better; many will have got worse. Prison does not make a community safer. The opposite: prison ultimately contributes to making it more dangerous." In my opinion, it is true that individuals become better criminals in jail not better citizens. There is no better place to learn crime.The masses will continue to conform to ineffective ideals and call retribution rather than rehabilitation. The worst is that the future criminal will continue to be born at the same rate.

5. Crime and punishment are a reflection of and an institution that shapes the community

A mass of statistical data shows that the bigger the gap between the poorest and the richest in a country the higher the levels of crime, ill health and societal breakdown will be.

Nowadays we live in a world of capitalism. Under capitalism the justice system has a purpose beyond restraining the “have nots” and legitimizing the rule over society by a privileged minority. It regulates the machinery of state and systems of trade. The wealthy want their claims to property and goods to be normalized by law and to ensure that none among them has an unfair advantage over the others. Therefore, capitalist society offers every one the same goals e.g. a nice house, a sport car, designer clothes. But it can offer these only to a tiny minority the prospect of enjoying this kind of existence. Most of people will never have the chance to secure the standard of living that is sold to them towards television and in advertising. The vast inequalities produced by capitalism mean that, for many people at the bottom of the society, “a life that involves crime is a mean of survival.”

Inequality is built into the nature of capitalism itself. Order and law, like sexism and racism are ideological tools in the hand of the rich elite who run our society. The capitalist concepts of order and law serve to mask the real causes of social problems and by seeking to blame individuals and divide ordinary people.

My view is that,crime and punishment are a reflection of and an institution, that partially shape the community. As discussed above there are a number of other factors that influence and shape a society, most important of which is poverty, deprivation and social injustice. Today’s social system, capitalism in one form or another has not only failed to address these problems but amplified the social breakdown during the last century. The social gap has widened and as a result we see an upward trend in crime statistics. Crime and punishment is indeed is a reflection of and an institution that shape the society but not the only one and most probably not the most important. Society must look beyond capitalism through a better way of organizing society which minimizes social injustices, poverty and deprivation. The justice system should then fill the gaps and heal the wounds that crime inflicts on both the victim and offender.

p.s: i know that is a long post but i wanted to give a good explanation of crime and punishment the analysis and views of others and of-course mine. I couldn't do it in 3 paragraphs.However I hope that you will find it interesting.